Lawson v. Ferguson

Filing 5

ORDER DISMISSING CASE, Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN LAWSON,
Plaintiff,
CASE NO. 14-12978
HON. JOHN CORBETT O’MEARA

v.
DESIREE M. FERGUSON,

Defendant.
______________________________/
ORDER OF DISMISSAL
I. Introduction
This is a pro se civil rights action under 42 U.S.C. § 1983. Plaintiff
John Lawson is a state prisoner at Bellamy Creek Correctional Facility in
Ionia, Michigan. Defendant Desiree M. Ferguson was an attorney
employed by the State Appellate Defender Office during the time in
question.
The complaint and exhibits indicate that, in 2001, Plaintiff was
charged with first-degree murder. His trial attorney initially questioned
whether Plaintiff was criminally responsible for the murder due to his
mental state at the time of the crime. As a result, the attorney obtained a
court order appointing an independent psychiatric expert to interview

Plaintiff. Plaintiff claims that there was no independent examination before
trial. His trial attorney, nevertheless, maintained that Plaintiff had been
examined by an independent expert and had been found criminally
responsible and competent to waive his constitutional rights. As a result of
these findings, the attorney abandoned an insanity defense. On October
30, 2002, Plaintiff was found guilty as charged, and on November 13, 2002,
he was sentenced to mandatory life imprisonment.
Ms. Ferguson was appointed to represent Plaintiff on appeal from his
conviction. Plaintiff allegedly informed Ms. Ferguson that he had not been
interviewed by an independent psychiatric expert. Ms. Ferguson then
agreed to investigate the matter. According to Plaintiff, Ms. Ferguson also
stated that, if Plaintiff did not see an independent psychiatric expert before
trial, she would move for appointment of an independent psychiatric expert
and Plaintiff would have to be examined by the independent expert.
Ferguson maintained that these steps were necessary to prove that trial
counsel was ineffective for failing to obtain an independent evaluation of
Plaintiff’s mental state at the time of the offense.
Ms. Ferguson’s office ultimately paid a licensed psychologist to
examine Plaintiff. The examination, however, occurred after Ms. Ferguson

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filed her appellate brief in Petitioner’s case. Consequently, the appellate
brief did not raise an issue about trial counsel’s alleged failure to have
Plaintiff examined by an independent psychiatric expert.
On August 12, 2004, the Michigan Court of Appeals affirmed
Petitioner’s conviction, and on August 13, 2004, an independent licensed
psychologist interviewed Plaintiff. On September 7, 2004, the psychologist
concluded in a written report that Plaintiff was not mentally ill and that he
did not claim to be mentally ill at the time he committed the murder.
Plaintiff now claims that Ms. Ferguson failed to disclose to him that
he should have been examined before trial, that she did not need a court
order for an independent psychiatric examination, that she did not apply for
the court order, and that she did not have a court order. He points out that
he already had a court order for appointment of an independent expert and
that Ms. Ferguson never attempted to obtain another order, opting instead
to pay for the expert’s services. Plaintiff further alleges that Ms. Ferguson
misled him into thinking that trial counsel was not ineffective for failing to
have him examined by an independent expert. Finally, Plaintiff claims that
Ms. Ferguson herself was ineffective for having him evaluated for the
insanity defense twenty-two months after he was convicted and for failing

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to raise an appellate claim about trial counsel’s ineffectiveness. Plaintiff
seeks money damages and a declaratory judgment on the basis that Ms.
Ferguson’s acts and omissions caused him to suffer emotional distress,
lost wages, damage to reputation, and a sentence of life imprisonment.
II. Legal Standard
Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), the Court must
dismiss a prisoner’s complaint if the Court determines that the action is
frivolous or malicious or fails to state a claim on which relief may be
granted. A complaint is frivolous if it lacks an arguable basis in law or in
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). While a complaint
need not contain “detailed factual allegations,” the “[f]actual allegations
must be enough to raise a right to relief above the speculative level . . . on
the assumption that all the allegations in the complaint are true (even if
doubtful in fact) . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). “So, to survive scrutiny under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii),
‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’” Hill v. Lappin, 630 F.3d.
468, 471 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
III. Analysis
Plaintiff’s complaint is frivolous and fails to state a claim for which
relief may be granted because it challenges his state conviction and
sentence. “[W]hen a state prisoner is challenging the very fact or duration
of his physical imprisonment, and the relief he seeks is a determination that
he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, Plaintiff’s claims are
“cognizable only in federal habeas corpus, with its attendant requirement of
exhaustion of state remedies.” Id. at 499 n.14.
Furthermore,
to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a §
1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim
for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable
under 1983.

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Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote
omitted)(emphasis in original). Heck and progeny,
taken together, indicate that a state prisoner’s § 1983 action is
barred (absent prior invalidation) -- no matter the relief sought
(damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal
prison proceedings) -- “if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration.
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original).
Plaintiff has not shown that his conviction or sentence was
invalidated by state officials or called into question by a federal court on
habeas corpus review, and success on his claim about his former appellate
attorney would necessarily demonstrate the invalidity of his confinement.
Thus, his complaint is barred by Heck and Dotson.
The complaint is subject to dismissal for an additional reason. To
prevail in a § 1983 action, a plaintiff must prove two elements: “(1) that he
or she was deprived of a right secured by the Constitution or laws of the
United States; and (2) that the deprivation was caused by a person acting
under color of law.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014).

The sole defendant in this case was Plaintiff’s court-appointed

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appellate attorney. Defense attorneys, even those appointed by the court,
do not act under color of law when performing traditional functions as
counsel to a defendant in a criminal proceeding. See Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (public defenders); Mulligan v.
Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorneys appointed
by the court). Thus, Ms. Ferguson is not a proper defendant in this lawsuit,
and Plaintiff has failed to prove an essential element of a civil rights action
under § 1983.
IV. Conclusion
Plaintiff’s allegations lack an arguable basis in law and, therefore, are
frivolous. The allegations also fail to state a plausible claim for which relief
may be granted. Accordingly, the complaint is summarily dismissed under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). An appeal from this order
would be frivolous and could not be taken in good faith.

s/John Corbett O’Meara
United States District Judge

Date: August 19, 2014

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I hereby certify that a copy of the foregoing document was served
upon the parties of record on this date, August 19, 2014, using the ECF
system and/or ordinary mail.

s/William Barkholz
Case Manager

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